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Tuesday, March 16, 2010

On the Slaughter Solution, A Few More Thoughts

Over at the Washington Examiner, Mark Tapscott has blogged about the constitutional issues I raised Sunday with regard to the so-called "Slaughter Solution."

The Slaughter Solution is a proposed rule to allow the House to (ostensibly) pass the Senate's version of ObamaCare by passing a rule saying, in effect, that it had passed without actually voting for it.

Although it is not yet clear if the Democratic leadership will decide to use the Slaughter Rule tactic, the left is pre-emptively defending the measure, claiming the Republicans used "self-executing rules" on numerous occasions when in the majority.

To that, a few thoughts of my own:

1) While the Republicans may have done so, they (insofar as I can determine) limited the use of the tactic to measures insufficiently controversial to inspire anyone to challenge the constitutionality of the tactic in court. According to a 2006 Congressional Research Service report (pdf), for instance, the GOP used the rule for the following purposes:

a) consider a law prohibiting smoking on airline flights under two hours;b) place a voluntary employment verification program (vis-a-vis immigration status) into an amendment under consideration in the House;c) incorporate into legislation a ban on the use of statistical sampling in the 2000 Census until a court ruled on its constitutionality;d) incorporate four bipartisan amendments into an IRS reform bill;e) drop from an intelligence authorization bill a provision allowing the CIA to offer a particular early retirement program;f) to adopt a manager's amendment, H.Res. 75, to an immigration bill in 2005.

Do these strike anyone as roughly equivalent to the significance of the ObamaCare vote?

2) So what if the Republicans did it? Does that make it right? Or constitutional? The GOP leadership also broke the House rules by holding a three-hour roll-call vote on its prescription drug bill back in 2003 (which conservatives screamed about at the time; see here for example). Does that mean conservatives and others who believe in free markets (or free choice in health care) have to sit by let the Democrats break that rule in the same fashion, too? When do we start playing by the rules?

3) If I were a Democratic politician interested in future electoral success, even if I supported ObamaCare, I would be very wary of voting for it this way. What if the legislation passes via a Slaughter Solution tactic, and the federal courts rule the tactic unconstitutional? ObamaCare would be tossed out, making supportive politicians look both impotent and vaguely corrupt, and on a judicial timetable, which could be right before an election. If I were in that situation, I'd think it better to hold an up-or-down vote and live with the consequences.

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